We impose negligence when there is a precaution we want people to take

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§ 480 holds the same thing, but from the plaintiff’s side. That is, plaintiff may still recover if plaintiff has discovered the danger but defendant knew/should have known of the danger but does nothing about it.

Second Restatement: §503(3): “A plaintiff whose conduct is in reckless disregard of his own safety is barred from recovery against a defendant whose reckless disregard of the plaintiff’s safety is a legal cause of the plaintiff’s harm.”

See Johnson, below
Reckless: Careless to the point of being heedless of the consequences (“grossly” negligence)

Fuller v. Illinois Central R.R., 56 So. 783 (Miss. 1911). D liable when its train hit a 70 year old man who was negligently on their tracks since defendant made no effort to avoid the accident, and should have seen that the decedent was unconscious of the approach of the train.

Court noted that this case was different from the case in which an individual darts near a train, and the engineer has the reasonable belief that the pedestrian will get out of the way
Epstein: Fuller represents a court’s attitude towards sequential causation. There was an a symmetry of possible harms and in the relationship, and D had a clear opportunity to avoid the accident.
But see Washington Metropolitan Area Authority v. Johnson, 726 A.2d 172 (D.C. Ct. App. 1999)
1. Reckless plaintiff v. reckless defendant.
2. Decedent flung herself onto the tracks of an oncoming train only to be killed when the defendant’s intoxicated conductor ran over her. Court refused to apply the common carrier doctrine to a plaintiff who had willfully invited the harm that occurred.

Assumption of Risk

Lamson v American Axe & Tool Co., 58 N.E. 585 (Mass. 1900)
1. Plaintiff was in the business of painting hatchets at the factory. The new racks were less stable than before. Plaintiff informed his supervisor of the risk of falling hatchets. P was told to live with it or leave. P was injured when a hatchet fell on his head
2. Plaintiff’s assumption of risk bars recovery despite the fact that plaintiff assumed that risk in order to maintain his job.
3. Epstein: Lamson represents the classical view Under the classical view, once both parties have complete information (symmetrical information), there is no analysis on the reasonableness of alternatives.
  1. Lamson would be a typical workers comp claim today
  2. The worker’s comp law institutionalizes what you would have gotten in an open market
4. Farwell v. Boston & Worcester R.R. Corp., 45 Mass. 49. Plaintiff was employed as an engineer by D. P lost his hand when another employee negligently flipped the wrong switch. Court barred recovery
  1. Passengers/strangers could recover but employees could not
  2. Workers can protect against risk in a manner passengers could not (hence the “utmost care” standard of Kelley)
  3. Worker voluntarily took the job/risk, and that applies to risks created by employees in other departments
  4. This is a much tougher rule than in Lamson: Farwell holds that there is assumption of risk by virtue of status (i.e., being an employee) alone. Though, Court does allow that P could sue the bad employee that actually caused the accid
Voluntary activities. Murphy v. Steeplechase Amusement Co.,
1. One who takes part in a risky, though not inherently dangerous, activity assumes the risk of injury. The timorous should stay home.
2. Plaintiff’s contention that D was negligent in failing to properly pad the ride cannot be considered since the original action was brought in regards to the “sudden jerk” of the machine.
3. Epstein: P’s explination that’s most persuasive is that the machine was supposed to be padded everywhere, except that one area where he was hurt (of course you need to prove the actual causation here)
  1. Becomes a defective premises case, hence the risk could not be assumed
  2. It is then a “latent defect” case
  3. Explains why P and only P was injured
  4. The alternative individuating explination is the one that holds P brought it on himself by showing off for his girlfriend (now-wife)
  5. The more modern reasons with respect to causation is that simple obviousness of defects is not enough to win a directed verdict for D. You need three things to protect yourself:
    1. Conspicuous warnings (cf., McDonald’s warnings)
    2. Change the nature of the device; separate the ride from the transition phase
    3. Utilize real elements of crowd control
Duty to warn. Duty to warn. The distinction seems to fall on what exactly is warned vs. the actual harm that comes to pass (i.e., no recovery if P does something specifically warned against)
1. Desai v. Silver Dollar City, Inc. 493 S.E.2d 540. P was injured while attempting to help her grandmother out of a water ride before being signaled to do so by the park attendant. This act was specifically warned against by a large sign. Plaintiff’s claim was dismissed upon summary judgment.
2. But see Russo v. The Range, Inc. N.E.2d 10 (Ill. App. 1979). Court overturned summary judgment for D. Russo was injured when, he claims, he flew into the air while riding a “giant slide.”
  1. Though there warnings and instructions for proper use of the rides (and P had ridden them before) the appellate court allowed the case to reach a jury under the theory that the actual injury was caused by “an abnormal occurrence caused by some danger unknown to [P] and was some risk he did not assume.”
Spectator sports. Generally speaking, assumption of risk can be used to deny recovery to spectators injured at sporting events. Defense has two levels
1. Common knowledge of risk
2. Particular knowledge of the P (e.g., if the P has gone to a lot of games, there is more knowledge, “more” assumption of risk)
3. Note: Professional athletes are generally barred from recovery (absent extraordinary circumstances) under assumption of risk theory
  1. Their “professional standard” imputes a higher level of assumed risk
  2. The game is risky to begin with: “We do not deal here… with a hole in the playing field hidden by grass, but with water, indicative of the presence of mud, the danger of which plaintiff was sufficiently aware to complain to the grounds keepers. It is not necessary to the application of assumption of risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results”Cf. Maddox v. City of New York, 487 N.E.2d 553 (N.Y. 1985)
  3. Can clearly reconcile this with Russo
Primary and secondary assumption of risk.
1. Meistrich v. Casino Arena Attractions, Inc. 155 A.2d 90 (N.J. 1959). Case distinguishes “primary” and “secondary” assumption of risk
  1. Primary assumption of risk: No breach of duty on D’s part, P simply engaged in risky behavior
  2. Secondary assumption of risk: D breached a duty, but P assumed some risk in the activity itself
    1. Assumption of risk, in this case, is only an aspect of contributory negligence
    2. RPD: Can you really assume the risk of negligence on the part of another? I don’t think so. (Otherwise med/mal doesn’t work)
2. Marshall v. Ranne, 511 S.W.2d 255 (Tex. 1974). Defendant’s mad boar bit the plaintiff. Trial court found for D on the basis that P could have shot the boar but didn’t want to so such an “unneighborly” thing or could have remained inside.
  1. Appellate reversed on the basis that
    1. assumption of risk does not apply in strict liability situations
    2. When the plaintiff’s assumption of risk is on the basis of being forced to choose between two evils.
3. ADM Partnership v. Martin, 702 A.2d 730 (Md. 1997). Plaintiff Martin was injured when she fell on a walkway covered w/snow and ice when she made a delivery to D’s premises. Since D was under no obligation/duty to make his premises any safer than they were on behalf of P, the risk was assumed entirely by the P.
  1. Though P voluntarily confronted the risk in question, she claimed it was motivated by “economic necessity”
  2. Court refused this as a matter or law when P could show no evidence that her job had ever been threatened
  3. Moreover, the “economic necessity” of P had no bearing on any duty/lack of duty from D to P
Fireman’s exception. Generally speaking, the assumption of risk bars claims by people protecting the public peace (firemen, policemen, etc.) from recovery. This rule has generally held hard and fast
1. See generally Krauth v. Geller, 157 A.2d 129 (N.J. 1960).
  1. Fireman cannot complain of negligence in the creation of the very occasion for his engagement
  2. Fireman should be compensated for his risk
Obstetrics & Gynecologists Ltd. v. Pepper; 693 P.2d 1259 (Nev. 1985)
1. P attempted to void her binding arbitration clause after the oral contraceptive she received caused partial paralysis.
2. Court held that a mandatory arbitration may not be enforced when P can show no recollection of the agreement and D has failed to demonstrate a clear understanding of the ter ms and obligations of the agreement at the time of its perfection.
The problem of assumption of risk by contract. Courts have generally been mixed in their attitude towards a D’s ability to get P to contractually agree to an assumption of risk. E.g., Tunkl v. Regents of University of California, 383 P.2d 441 (Cal. 1963) in which the court invalidated such a clause on the basis of six criteria:
1. Concerns a business of a type generally suitable for public regulation
2. Party seeking exculpation (hospital) is engaged in a service of public importance, often a matter of practical necessity for the public
3. Party holds himself out as willing to perform this service (or at least within certain standards)
4. Party invoking exculpation has substantial bargaining strength/superiority
5. Party invoking exculpation presents public with an adhesion contract and allows for no negotiation regarding increased fees for increased protection, etc.
6. The signer of the contract is placed under the control of the seller and subject to any harms the hospital deems fit
7. Tunkl has become good law to strike down such contractual waivers:
  1. E.g., Wagenblast v. Odessa School District, 758 P.2d 968 invoked Tunkl to strike down a parental waiver releasing the school from liability for injuries sustained by kids in interscholastic athletics. The Court preferred to look that the cases on a case-by-case basis
  2. But see, Zivich v. Mentor Soccer Club Inc. N.E.2d 201 upheld such an exemption so as to protect a volunteer group from the “overwhelming risks and overwhelming costs of litigation.”
    1. Also, Seigneur v. National Fitness Institute, 752 A.2d 631 specifically refused to use Tunkl in a tort claim for a P who had been injured while working out with weights (RPD: Clearly a different fact set).
Common carriers and lost property. Paraskevaides v. Four Seasons Washington, 292 F.3d 886 (D.C. 2002)

Plaintiff had $1.2MM stolen from safe in a hotel room. Plaintiff’s had declined to store their valuables in the hotel safe, despite notice that such a safe was available.
However, D was denied statutory defense since they had failed to post notices as specifically required by law. However, the issue of contributory negligence went to trial/jury

Comparative Negligence

Li v. Yellow Cab Co. of California 532 P.2d 1226 (Cal. 1975)
1. Action arose from a car accident. P attempted to cross three lanes of oncoming traffic to enter a service station. P was struck by D who was traveling at an excessive speed when he ran a yellow light just b/f striking P.
2. Court held that
  1. a comparative negligence system ought to be adopted.
    1. Better than an all-or-nothing system
    2. Doctrine does not apportion liability relative to fault
    3. Juries are already doing this
  2. 25 other states have done so, FL did it judicially
    1. Judicial modification is not prohibited by existing statute
      1. Statute is a codification of the common law
      2. Therefore contemplates the “evolution” of the doctrine
  3. Comparative negligence will be enforced in its pure (not 50%) form
    1. Liability should be in proportion to fault
    2. The 50% rule creates administrative nightmares and basically restates the old contributory negligence problem
3. Epstein does not like Li v. Yellow Cab.
  1. Really does not like any arguments for incentives for primary conduct (no one ever adjusts their conduct)
  2. The concern should be resolving litigation
  3. Clearly, he would prefer a system that does not individuate particular cases.
Comparative negligence in admiralty
1. Traditional rule was that, when two boats were both negligent, the court would split damages 50-50 regardless of who bore more of the blame.
2. This rule was rejected in U.S. v. Reliable Transfer Co., 421 U.S. 397 (1975)
  1. Tanker had crashed into rocks while attempting a dangerous turning maneuver
  2. Problem exacerbated by Coast Guards’ failure to properly maintain lights
  3. Court apportioned the fault at 25% Coast Guard, 75% ship
  4. Supreme Court went with the comparative negligence and that has been the rule since
“Impure” comparative negligence by judicial legislation
1. Bradley v. Appalachian Power Co., 256 S.E.2d 879 (W. Va. 1979)
2. Holding: party is barred from recovery if his negligence or fault equals/exceeds the combined negligence or fault of the other parties involved in the accident
Comparative negligence has been broadly adopted by legislation since Li.
1. FELA offers the strongest defense against an application of comparative negligence on the part of the P.
2. New York, §§1411-1412:
  1. Damages in negligence cases not barred by contributory negligence, but damages diminished in proportion to the contribution
  2. It’s an affirmative defense, which must be so stated in the pleadings
3. PA; 42 Pa. Cons. Stat. Ann. §7102
  1. Contributory negligence does not bar recovery so long as the negligence is not greater than that of the D. Damages to be reduced in proportion of the negligence
  2. When there are joint defendants:
    1. Each D liable for the proportion of the total damages based on their % of negligence
    2. P can compel full verdict from one of the D’s, who then has recourse against the other D
    3. Downhill skiing exception: Voluntary assumption of risk, not covered by comparative negligence
4. WI: W.S.A. §895.045
  1. Contributory negligence does not bar recovery so long as its less than or equal to that of the D, damages reduced in proportion to the negligence
Special verdicts & jury decision: In special verdicts, the jury’s finding of facts is left up to the judge, who then applies the law to those facts b/f rendering judgment.
1. It has been argued that this provides a more transparent process of adjudication of damages in a comparative negligence system.
2. ID statute allows a party to request a special verdict on the amount of damages and the % of negligence, after which court can make the appropriate measure of damages
Insurance Co.’s. A comparative negligence system makes it possible for each party to recover from the other.
1. E.g., A and B are involved in an accident
  1. A has suffered $100,000 in damages and is 25% liable
  2. B has suffered $200,000 in damages and is 75% liable
  3. A has a claim for $75,000 against B ($100,000 - $25,000)
  4. B has a claim for $50,000 against A ($200,000 - $150,000)
  5. A’s InsuranceCo seems to have to pay B and vice versa
2. Jess v. Hermann, 604 P.2d 208 held that such a set off was available only when the parties in question were not covered by insurance, otherwise, you would have a situation in which: An insurer’s responsibility under its policy depends on
  1. the extent of the injury suffered by the person negligently injured by its customer
  2. On the injury suffered by its customer as a result of the other party’s negligence
  3. Court felt such an outcome would defeat the purpose of insurance (i.e., covering only for one party)

Multiple Defendants: Joint, Several, and Vicarious Liability

Definitions:
1. Joint liability: Liability shared by two or more parties
  1. Implies that each of the defendants is responsible for the entire loss that they all caused in part
  2. A jointly liable defendant must answer for the full loss
2. Several liability: Liability that is separate and distinct from another's liability, so that the plaintiff may bring a separate action against one defendant without joining the other liable parties.
  1. A severally liable defendant can only be held liable for his share
3. Joint and several liability: that may be apportioned either among two or more parties or to only one or a few select members of the group, at the adversary's discretion.
  1. Thus, each liable party is individually responsible for the entire obligation
  2. A paying party may have a right of contribution and indemnity from nonpaying parties.
4. Market share liability: Liability that is imposed, usu. severally, on each member of an industry, based on each member's share of the market or respective percentage of the product that is placed on the market.
  1. This theory of liability usu. applies only in the situation in which a plaintiff cannot trace the harmful exposure to a particular product, as when several products contain a fungible substance.
  2. For example, it is sometimes applied to a claim that the plaintiff was harmed by exposure to asbestos.
5. Indemnity: A duty to make good any loss, damage, or liability incurred by another.
  1. 2. The right of an injured party to claim reimbursement for its loss, damage, or liability from a person who has such a duty.
  2. 3. Reimbursement or compensation for loss, damage, or liability in tort; esp., the right of a party who is secondarily liable to recover from the party who is primarily liable for reimbursement of expenditures paid to a third party for injuries resulting from a violation of a common-law duty
Note: Plaintiff’s total satisfaction of judgment cannot exceed the damages awarded by the court
1. E.g., 3 Ds are held liable for $100,000
2. P can collect as much as he wants (assuming this is a pure joint and several liability system) so long as his total collections do not exceed $100,000
Union Stock Yards Co. of Omaha v. Chicago, 196 U.S. 217 (1905)
1. Plaintiff terminal company was responsible for moving the switching cars for the defendant railroad in its yard. One of the cars under its control had a defective nut, either the terminal company or the RR could have discovered it with reasonable inspection.
  1. Plaintiff’s employee was injured as a result.
  2. P paid damages to employee
  3. P then sough to recover from Chicago.
2. Court held that both the railroad company and the defendant had an affirmative duty to the plaintiff. The terminal company was held liable for its breach of this duty and may therefore not recover from another negligent party.
3. Note: , a release from liability of one party was traditionally held to release all tortfeasors (under the theory that tortfeasors constituted one person in the eyes of the law)
  1. Recent trend of cases has been to reject this rule.
  2. Hess v. Ford Motor Co., 41 P.3d 46 (Cal. 2002): P was left paraplegic after his Ford rolled over. P’s settlement contained a mistake that discharged all corporations, firms, etc.
    1. Judge let in extrinsic evidence to prove mutual mistake
    2. If there is a dispute over which party is released, the burden of proof will be on the party claiming the release. A release of “all persons” is generally insufficient to get everyone out, unless the settling D has some connection to the other Ds in the suit
California joint liability statute
1. Section 875
  1. Right of contribution in money judgments of joint liability
  2. Administered in equity
  3. Contribution can only be enforced after one D has discharged the joint judgment or paid more than his pro rata share. Can’t make a D pay more than his pro rata share
  4. No contribution for intentional torts
  5. Liability insurers acquire contribution rights if they pay
  6. Does not interfere with personal rights of P against single Ds
  7. RPD: So, if there is a $100 judgment against 2 Ds and 1 D pays the full $100, then the D still has a claim of $50 against the other D
    1. That is, any D can recovery from his fellow Ds any amount paid beyond the pro rata share
2. Section 876: Calculating the pro rata share
  1. Based on dividing judgment equally among them
  2. When one person is liable for the torts of another (master/servant), then the pro rata share treats them as a single person, but there can be indemnity among them
3. Section 877: Release must specifically discharge a party
4. Section 877.5: Disclosure requires if any part of liability of D is reduced in exchange for testimony against other Ds. Agreement is only good if other parties receive notice w/in 3 days.
American Motorcycle Association v. Superior Court 578 P.2d 899 (Cal. 1978)
1. A concurrent tortfeasor may seek partial indemnity from another concurrent tortfeasor on a comparative fault basis but the P may still get full recovery from any one of the tortfeasors
  1. That is, they can seek compensation
2. P’s total recovery is reduced by a good faith settlement with one or more of the tortfeasors
  1. Indemnity: A duty to make good any loss, damage, or liability incurred by another.
3. i.e., each defendant will be responsible for the acts attributable to his codefendant’s negligence (Clark, J. dissenting)
  1. E.g., P is 30% at fault, D1 60%, D2 10%
  2. D2 (10% liable) may have to pay the full loss
Dole v. Dow Chemical Co., 282 N.E.2d 288. Defendant Dow supplied Urban Milling Co. with a poision, methyl bromide, to fumigate its bins for rats. Urban Milling used the poison, but neglected to give enough time for it to clear before allowing Dole, its employee to enter. Dole died. P brought suit against Urban Milling and Dow.
1. Court held that a prime defendant (Dole) could recover damages for the negligent acts of third parties (Dow)
2. This also required a contribution of negligence among the parties.
3. Dole thus resulted in suits by a P against employers otherwise protected by worker’s comp (since P could sue employer, who then would have to recover from the 3^rd party).
  1. This type of plaintiff suit was limited by NY statute to only apply to serious injury (such as a lost limb)
Insolvent debtors and liability. American Motorcycles implies that remaining D’s bear the risk of an insolvent co-D.
1. However, Evangelatos v. Superior Court, 753 P.2d 585, 590. Court held that, in the instance of an insolvent defendant, other defendants would only have to bear a portion of the shortfall in proportion to their liability
2. For example:
  1. P: 30%
  2. D1: 60%
  3. D2: 10%
3. Assume D1 is insolvent
4. Therefore, P and D2 must split D1’s share of the burden in proportion to their overall responsibility of D2 relative to P
5. General formula:
  1. Insolvent D’s liability x (Solvent D’s burden/(P’s burden + D’s Burden)) + Solvent D’s initial burden
  2. This implies that D2 would owe 25% in this case: 60 x (10/(30+10)) + 10 = 25
Several liability for multiple defendants. In Brown v. Keill, 580 P.2d 867 (Kan. 1978), the Kansas court held that the Kansas comparative negligence statute abrogated joint and several liability, and created only several liability. RPD: This is an extreme retreat from pure joint and several liability (per Hornbook law)
1. Rule allowed recovery if negligence was “less than” that of D
2. Court interpreted the statutory apportionment of negligence required several liability (party paying the damages may recover from the other Ds)
3. Court also based its ruling in public policy
4. However, the rule of joint and several liability is alive and well in asbestos cases. Norfolk & Western Ry. V. Ayres, 538 U.S. 135 (2003) held that joint and several liability applies in FELA cases, since the language of the statute was “shall be liable in damages” to any employee “in whole or in part”
Statutory responses to joint and several liability. Clearly the concern is about a marginally responsible D being forced to pay the full damages for a grossly negligent but insolvent co-D.
1. Some states have abolished joint and several liability as a result
2. Some states have created exceptions for joint and several liability in very specific cases
  1. NY if a tortfeasor whose culpability is less than 50% is not jointly liable for P’s non-economic damages, but only proportionate share
    1. Also that culpability of 3^rd parties is ignored (shifting greater burden to Ds)
    2. The problem with the NY statute was that while it allowed P to jointly shift responsibility of insolvent Ds to other Ds who went insolvent b/f lititigation
    3. But what happens if the Ds when insolvent after litigation (and all actions are stayed)?
3. Kharmah v. Metropolitan Chiropractic Center, 733 N.Y.S.2d 165 (A.D. 2001). Though bankrupt defendants will not participate in trial, if remaining D’s culpability proved less than 50% their share of non-economic damages limited to their proportion of fault (rather than having the whole burden shifted over)
4. Note: California has adopted a “several liability rule” for non-economic damages; hence shares can only be shifted in proportion to culpability
Settlements. McDermott, Inc. v. AmClyde & River Don Castings, Ltd., 511 U.S. 202 (1994)
1. Should the liability of the non-settling defendants be calculated with reference to the jury’s allocation of proportionate responsibility, or by giving non-settling defendants a credit for the dollar amount of the settlement?
  1. E.g., 38% x 2.1MM or 38% x (2.1MM – 1.0MM)?
2. Proportionate share liability is appropriate: Settlement extinguishes claim against the settling party, but leaves the other parties liable for their share of the damages and their share alone
  1. The payment simply satisfies the proportionate share of the settling D’s liability (regardless of whether or not that that is what the jury determines the share to be)
    1. Two Ds, each 50% liable
    2. Even if D1 settles for 25, the most D2 can be liable is still 50 (his proportionate share)
    3. The two claims will be essentially treated independently by the court (and not jointly)
  2. Note: Court rejects two alternatives:
    1. Pro tanto: Settlement extinguishes claim against the settling party, and other tortfeasor enjoys a credit of the settlement. A claim for contribution may be made if one tortfeasor pays too much (RPD: Pro tanto means “only to that extent”)
    2. Pro tanto: Settlement extinguishes the claim against the settling party and any claims for contribution
      1. E.g., two Ds, each 50% liable.
        
        D1 settles for $250K
        
        Jury verdict of $1MM.
      2. D2 must pay $750K
        
        More than its culpability
        
        No recourse to contribution
3. Mary Carter agreements
  1. In Mary Carter, the court approved an agreement whereby D reached a settlement with P to remain in the case, even after signing a secret agreement with P that allowed D to reduce his share damages as against P as the liability of his co-D’s increased.
  2. Note: CA statute now takes these types of agreements into account. Section 877.5: Disclosure requires if any part of liability of D is reduced in exchange for testimony against other Ds. Agreement is only good if other parties receive notice w/in 3 days.
  3. Florida struck down such agreements in Dosdourian v. Carsten, 624 So.2d 241 (Fla. 1993) on the basis of public policy/confusion of P and D roles at trial

Vicarious liability (RPD: See Notes.11.23.04)

Employer is liable under respondeat superior for the acts of an employee committed w/in scope of employment
Exception: Frolic and detour
Partner of a joint enterprise is vicariously liable for the wrongs of another partner.
Petrovich v. Share Health Plan of Ill.
1. Apparent authority: a principle can be liable by virtue of the apparent authority given to an employee (though P must prove “justified reliance” on that authority)
2. Implied authority: does the alleged agent retain the right to control the manner of doing work?
3. Thus, an HMO may be held vicariously liable for the negligence of its independent-contractor physicians under both the doctrines of apparent authority and implied authority

Epstein: Where are the borderline cases in terms of vicarious liability?

Corporations themselves are always vicariously liable (corporations can only act through agents)
Analysis:
- Where does the accident take place?
  - On the premises?
  - On some premises so close so as to be part of the employer’s premises?
What is the nature of the relationship?
- E.g., policemen are always perceived as being on the job?
For whose benefit is the action taken?
- Even if an employee uses forbidden means to achieve a company end, then vicarious liability exists
- The employee must be working for purely personal ends in order for vicarious liability not to apply (i.e., absolutely no discernible connection b/t the job and the act)

Causation

Introduction:

Analysis:
1. Cause in fact: D will prevail if he did not cause in fact any harm that occurred prior to his negligent conduct.
  1. D would need to show a pre-existing injury
  2. Or an independent aevent that caused the injury
2. Problem comes when P claims that D’s conduct has not caused the injury itself, but only an increased risk or hazard of injury (lost chance

Cause in fact

New York Central R.R. v. Grimstad; 264 F. 334 (2d Cir. 1920)
1. Grimstad was captain of a barge owned by D. Grimstad’s barge was struck by another ship. Grimstad presumably fell into the water as a result of the collision. Grimstad did not know how to swim and there were no life preservers. P subsequently drowned
2. The proximate cause of death was P’s falling into the water and not the failure to provide life preservers given that it is “pure conjecture and speculation” as to whether or not life preservers could have saved the P
3. Note: Juries are generally granted broad discretion as to whether or not a D’s negligence was a proximate cause in rescues at sea (as opposed to Grimstad)
  1. Kirinich v. Standard Dredging Co., 112 F.2d 163 (3d Cir. 1940)
    1. Defendant did not provide adequate life saving equipment. Question was whether or not such equipment could have/would have saved P.
    2. Court held that even though P couldn’t swim “We can take judicial notice of the instinct of self-preservation that at first compensates for lack of skill.” Therefore, enough conflicts of facts warranted sending the case to a jury.
  2. Reyes v. Vantage Steamship Co., 609 F.2d 140 (5th Cir. 1980)
    1. P dove into the water while drunk.
    2. D did not have the statutorily required gear to save him. It was given to a jury to decide whether or not P could have been saved given the existence of such equipment.
    3. Note: Burden of proof of causation can be shifted to D if D’s own negligence has prevented P from being able to assert some element of his case (see Haft, below)
Epstein: So far, we’ve only talked about cases in which D has harmed someone for some person in his charge. New York Central RR v. Grimsted (p. 394 in casebook), for instance, turns on a theory or maritime rescue (an affirmative duty)
1. But at the same time, you need to establish the extent to which the standard of care (which was negligently applied or, like Grimsted, absent) would have helped
2. However, as time passes, the judges become much more sympathetic to the P in terms of how effective the negligently absent/applied care would have
  1. Hence the fact that, in current tort claims, beating summary judgment gets you sixty cents on the dollar
On the other extreme, see Haft v. Lone Palm Hotel, 478 P.2d 465 (Cal. 1970)
1. P and his son drowned in the hotel pool. D failed to have a lifeguard on duty or a sign indicating the absence of a lifeguard as required by statute.
2. Court held that since D was negligent in not posting a sign, the D should not be allowed to benefit from their own negligence and “under these circumstances the burden of proof on the issue of causation should be shifted to defendants to absolve themselves if they can.
3. Epstein: Haft is example of how judges are trying to switch the causation questions by switching the burden of proof to the P
  1. The highwater mark of causation silliness masquerading as analysis
  2. It made a big stir when Haft came out, but hasn’t had a whole lot of sway
  3. The applicability of Haft is a function of local rules
Zuchowicz v. United States 140F.3d 381 (2d. Cir. 1998).
1. P died as a result of a rare lung condition. At trial, expert testimony existed to show that the condition was likely caused by exposure to Danocrine (a prescription drug), specifically to an overdose of Danocrine. P had been prescribed Danocrine by a Naval Pharamacy at 2x the recommended dosage
2. Since Danocrine was the factual cause of P’s death and it was negligently prescribed, a it was not clearly erroneous for the district court was the proximate cause of P’s death, especially given expert testimony that corroborate such a finding. (RPD: Pay attn’ to fact this was motion to set aside)
Slip and fall cases. Reynolds v. Texas & Pacific Ry., 37 La. Ann. 694 (1885)
1. Plaintiff, a 250lb woman slipped and fell on D’s stairs, which were outside the rail platform and not lit (it occurred at night).
2. D argued that the accident could have happened just as easily during the day. Court refused the D’s argument on the basis that the mere probability that such an accident could have occurred without negligence did not change the fact that D’s negligence substantially increased the risk of such an accident.

RPD: Similar to the logic used in Zuchowicz

Cause of fact in product liability. Engberg v. Ford Motor Co., 205 N.W.2d 104
1. P was killed when his brand new Ford crashed into a ditch. No other cars were around and no witnesses. P alleged that the seatbelt was improperly manufactured, which caused it to tear. And that the torn seatbelt directly contributed to P’s fatal injuries. D claimed that the seatbelt was severed by another manufacturer and not Ford.
  1. Court held that there was sufficient factual dispute to warrant a jury’s consideration of the matter
  2. D could not show P’s version of the facts was “contradicted by its undisputed physical facts”
2. Sanchez v. Hillerich & Bradsby, 128 Cal. Rptr. 2d 529 (Cal. App. 2002). In an NCAA game, P was struck by a ball flying off a specially-made bat. P sued.
  1. Appellate court ruled that the case could be submitted to a jury if P could establish that the bat had increased the speed of the ball (which then caused the injury).
  2. Expert testimony was used to do so, adding that the implied reaction time allowed P was then below that required by the NCAA.
Note: Restatement on causation. Restatement incorporates causation in the “but for” sense in terms of how it defines factual cause (and the cause need only be one of the relevant factors in the injury)
Causation in toxic torts:
1. GE v. Joiner: Abuse of discretion is the appropriate standard to be applied by an appellate court as to the type of expert testimony under Daubert.
2. Three burdens to prove causation in such a toxic tort case:
  1. Substance causation: the substance can in fact cause the disease in question
  2. Source causation: the defendant (and not someone else) was the source of the substance
  3. Exposure causation: P was in fact exposed to the substance in a way that caused the disease
    1. The problem, then, is that the evidence will generally be unavailable to support collective responsibility/liability when you have a large number of nonsignature cases (e.g., Agent Orange) in a toxic tort
3. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Court held that a district court’s gatekeeper function under Daubert extended to technical as well as scientific evidence.
  1. Case revolved around the engineering testimony about the possible causes of a tire blowout
  2. Held that a distinction between “scientific” and “technical” evidence made for an administrative impossibility
  3. In re Agent Orange litigation, 611 F.Supp. 1223 (E.D.N.Y. 1985). Weinstein dismissed the suits of those who opted out of the class (whereas the class itself settled) since the evidence (including animal and epidemiological studies) would not support the action (note that it anticipates/pre-dates Joiner)
Probability in terms of cause in fact can get you into court
1. Herskovits v. Group Health Cooperative, 664 P.2d 474 (Wash. 1983)
  1. Decedent had a less than 50% chance of survival when he was misdiagnosed. Misdiagnosis caused a 14% reduction in decedent’s survival chances; reducing survival from 39% to 25%
  2. Court rejects the notion that liability could be barred since survival was >50%
    1. Such a rule would, after all, allow a 51% chance of survival total damages (even though there was a 49% chance of death
  3. Damages limited to the actual lost chance of 14%.

Epstein: Herscovwitz introductes probabilistic causation into the system. Probabilities are incredibly difficult to establish
1. Hersc. Works in part b/c it’s a cancer case: there is a large supply of available data to accurately assess mortality rates/survival rates
2. However, this seems to explain why the P in Joiner fails. P in Joiner lacks the firm numbers that the P in Herscovitz readily available
Levmore: Herscovitz has some work in insider trading cases (lost chance doctrine)
Kingston v. Chicago & N.W. Ry. (p. 419)
1. Where two fires, both of which were the result of human agency, destroyed P’s house, D could be held liable for the total
2. D had the burden to establish that his fire could not/would not have been proximate cause
3. D failed in this burden
4. The rule we can take away from this is that “Each of two or more joint tortfeasors whose concurring acts of negligence result in injury is responsible for the entire damage”

Apportionment of damages:
1. Second Restatement § 433A
  1. Damages for harm are to be apportioned among two or more causes where
    1. There are distinct harms, or
    2. There is a reasonable basis for determining the contribution of each cause to a single harm.
  2. This has been incredibly influential
2. Damage will then generally get apportioned as a result of fault, the injury being treated as the total of both injuries
3. CERCLA (Comprehensive Environmental Response, Compensation and Liability Act) (aka Superfund)
  1. Imposes strict joint liability for defendants who discharge or release pollution
  2. Matter of Bell Petroleum Services, Inc. 3 F.3d 889 (5th Cir. 1993) (Jolly, J.)
    1. Three successive operators (Leigh, Bell, and Sequa) ran a chrome-plating operations on an industrial site from 1967 to 1977. U.S. sued all three parties from Cr contamination of the ground water
      1. U.S. settled w/the first two and sought to hold Sequa liable for $1.86MM in past damages
      2. U.S. also wanted to keep Sequa jointly and severally liable (with the others) for all future costs needed to maintain the groundwater system
    2. Sequa made its case by bringing in evidence “with respect to the value of the chrome-plating done by each, as well as summaries of sales. . . . Sequa introduced expert testimony regarding a volumetric approach to apportionment [and] . . . the amount of chromium that would have been introduced into the environment by each operator on the basis of electrical usage records
    3. But see Alcan v. U.S., 315 F.3d 179 (2d Cir. 2003) (Cardamone, J.)
      1. Alcan was the lone holdout in a government proposed settlement of a case that involved 83 potentially responsible parties, by arguing that its own waste was harmless in and of itself
      2. Court rejected this argument: “it failed to address the totality of the impact of its waste at each of the sites; it ignored the likelihood that the cumulative impact of its waste emulsion exceeded the impact of the emulsion’s constituents considered individually, and neglected to account for the emulsion’s chemical and physical interaction with other hazardous substances already at the site.”
    4. But see also Boeing Co. v. Cascade Corp., 207 F.3d 1177 (9th Cir. 2000)
      1. Boeing was required to clean up its site, which had been contaminated by its own pollution and that from a nearby Cascade plant. Cascade claimed that its pollution, which accounted for 70% of the waste material, imposed no extra obligation on Boeing
      2. Court rejected this argument
        
        Cascade would not be allowed to stick its neighbor with the bill
        
        “To leave one party shouldering the entire cost of investigation and remediation while another rides for free frustrates [CERCLA] rather than ensuring that those who caused the contamination pay their fair share of the costs associated with the cleanup. Thus, the practical consequences lead the same way as philosophical analysis in construing the statutory requirement of causation.” (Emphasis RPD)

What do you do when the action of each defendant is not sufficient to cause the harm in and of itself (as opposed to, say, Kingston)
1. Rizzo and Arnold: An Economic Theory, 80 Colum. L. Rev. 1399 (1980):
  1. Each party bears a fraction of the loss whose numerator is equal to the probability that his act alone would cause harm and whose denominator is the possibility that the act of either tortfeasor could have caused the harm
  2. Example:
    1. Probability of A being able to cause any (that is not to say “all”) harm: 0.2
    2. Probability of B being able to cause any harm: 0.4
    3. A’s liability = 0.2 / (0.2 + 0.4) = 1/3
    4. B’s liability = 0.4 / (0.2 + 0.4) = 2/3
2. Of course, this fails to give an answer when the probability of harm, given the wrongful conduct of A or B, is zero
Skipworth
1. Market share liability inappropriate for action against the Lead Industries Association
2. See Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980)
  1. Marketshare liability appropriate.
  2. Why?
    1. All manufacturers of DES used the same forumula
    2. Tracing of DES was inappropriate due to its fungible nature and the lapse b/t retail sale and subsequent health problems
    3. The defendants made substantially all of the DES
  3. Not appropriate in Skipworth:
    1. Time period of manufacture was too broad
    2. Exposure was unclear (as opposed to the nine months of pregnancy in Sindell)
    3. Lead paint was not fungible in the same was that DES (with the same formula) was fungible. This was dispositive
Summers v. Tice
1. Alternative liability
2. If the conduct of two or more actors is tortious, and it is proved that the harm has been caused by one of them, but it can’t be determined which, the burden is upon each wrongdoer to prove that he has not caused the harm. Otherwise, joint and several liability
  1. Requires simultaneous action (e.g., kids throwing rocks would qualify for alternative liability under Summers. This actually happened in Snoparsky v. Baer, 266 A.2d 707 (Pa. 1970)
3. Adopted in Restatement (Second) § 433B(3)

Proximate Cause (Herein of Duty)

Physical Injury
1. Distinction between “proximate” and “remote” cause of injury
  1. Proximate cause → damages are recoverable. Generally speaking, damages must be or should have been reasonably foreseeable for negligence of a defendant to constitute the proximate cause of injury
  2. Remote cause → damages are not recoverable
2. e.g., Ryan v. New York Central R.R.. Court held that a D could not be found liable when a fire started through D’s own negligence spread 130 ft. and destroyed P’s house.
3. Levmore on Ryan: Tortfeasor bears liability only after a substantial asset has been destroyed
  1. Since the D had already suffered a substantial harm, the court was willing to cutoff liability
  2. Levmore: If the D had not suffered substantial harm the court would likely have affixed liability to the damage suffered by the P. “99 times out of 100, making the tortfeasor pay for one structure is enough [deterrence]”
  3. Facts:
    1. A fire broke out in D’s woodshed due to either mismanagement or negligence of one of D’s engines
    2. The fire spread, and destroyed P’s house which was located 130 ft. away
  4. Did the distance breach the causal relationship between D’s negligence and P’s damages?
  5. Court held that D could not be liable since the spread of the fire over such a distance was not foreseeable and hence the result of intervening causes (e.g., “a concurrence of accidental circumstances, such as the degree of the heat, the state of the atmosphere, the condition and materials o the adjoining structures and the direction of the wind”
    1. A causal chain not dependent upon forseeability would subject an individual to liabilities against which he could not guard.
    2. “In a commercial country, each man, to some extent, runs the hazard of his neighbor’s conduct, and each, by insurance against such hazards, is enabled to obtain a reasonable security against loss.”
4. Fire cases generally
  1. Historically, common law cases took a much harder line towards the spread of fire.
    1. Beaulieu v. Finglam, Y.B. 2 Hen. 4, f. 18 pl. 6. D was liable not only for his own actions but for those of his guests. Court noted, “What is that to us [that D could be liable to up to 20 plaintiffs]. It is better that [D] be undone than that the law be changed for him.”
      1. Levmore: This is a strict liability fire (as opposed to the negligence at work in Ryan)
    2. Smith v. London & South Western Ry., 6 C.P. 14 (1870). Spark from D’s engine started a fire in some of D’s own cut grass. Fire spread and burned P’s home.
      1. Court held D liable
      2. Since it was the D’s grass trimmings that spread the fire, “the mere fact of the distance of this cottage from the point where the fire broke out does not affect their liability.”
  2. Note: Ryan does not say that the owner of a first building consumed in the fire and not the owner of a second building consumed in a fire has no recourse against the wrongdoer. Milwaukee & St. Paul Ry. v. Kellogg, 94 U.S. 469 (referencing Ryan)
5. “Ordinary and Natural Result of Defendant’s negligence”. D is responsible/liable for all the natural results of his negligent acts/omissions
  1. This was narrowly construed in Ryan
  2. “Ordinary and natural result of negligence” was defined broadly in City of Lincoln, 15 P.D. 15 (1889)
    1. P’s ship was without all navigational equipment (which had been lost), though still being adequately managed by her captain
    2. The court held that the loss of the P’s ship was still “a consequence as in the ordinary course of things” from D’s negligence
      1. RPD: “Ordinary course” was then inclusive of a P operating in such a dilapidated state and at the mercy of a negligent
6. Plaintiff’s response to emergencies. The problem of intervening actions
  1. Jones v. Boynce, 171 Eng. Rep. 540 (K.B. 1816). P jumped from D’s coach after it had gotten out of control and broke his leg. It was found that D was negligent but that P would not have been hurt if he had remained in his place
    1. D held liable. If P is placed in jeopardy due to the negligence of D, D will be liable for damages suffered by P
    2. However, this can be limited to damages suffered by P in the “reasonable apprehension” of physical injury (i.e., P’s response to the danger must have been reasonable).
    3. Tuttle v. Atlantic City RR, 49 A. 450 (N.J. 1901). Embraced the rule of Boynce. One of D’s trains jumped a rail, and P jumped out of the way. Though she would not have been injured had she remained in place, court upheld liability on the same grounds found above.
    4. Exception: Mauney v. Gulf Refining Co., 9 So.2d 780 (Miss. 1942). P, carrying a child, tripped over a chair in her husbands café when trying to flee after being warned that D’s gas truck was likely to explode.
      1. Court denied P’s claim on the basis that she had tripped over a chair in her own store
      2. It would have been impossible, reasoned the court, to expect D to forsee such an accident
7. Coincidence and causation. Generally speaking, a D’s negligence must increase the probability of the type of injury actually sustained by P in order to become a proximate cause
  1. Similarly, P’s contributory negligence must have actually increased the probability of injury sustained in order to bar recovery. Berry v. Sugar Notch Borough 43 A. 240 (Pa. 1899). P’s breach of a safety statute was not causally connected with his injuries because it did not increase the risk or hazard of his suffering the injury actually received.
    1. Facts.
      1. Sugar Notch regulated the operation of railcars to 8mph
      2. P, going faster than 8mph, was struck by a tree alongside a borough street which fell during a violent windstorm
    2. P was not barred from recovery because of his speeding.
      1. Court held that an argument which claimed that P’s speed was the cause of P’s injury was “sophistical.”
      2. No foresight could have prevented P from acting as he did (as regards the accident)
      3. A jury could have no rational basis for deciding otherwise
    3. Compare to Mahoney v. Beatman. Mahoney v. Beatman, 147 A. 762 (Conn. 1929). Plaintiff was driving at 60mph (a negligently fast speed). D was on the wrong side of the road. P pulled to the side of the road and was brushed by the D’s car.
      1. Trial court awarded only nominal damages to P since P’s negligee nce contributed to the extent of the damages, if not to the actual accident itself. However, Appellate court ruled that since D was the cause of the accident, P was entitled to full damages since the accident would still have occurred if P were driving at the proper speed.
    4. If D’s negligence does not increase incrementally increase the risk of harm actually suffered by P then the causal chain is disrupted. Central of Georgia Ry. v. Price, 32 S.E. 77 (Ga. 1898).
      1. P was not dropped off at the right stop, and put up at a hotel by the railway. Her hotel room contained a faulty kerosene lamp, which caught fire and severely burned P’s hands
      2. Plaintiff’s harm was too remote from D’s negligence. “The injuries to the plaintiff were not the natural and proximate consequences of carrying her beyond her station, but were unusual, and could not have been foreseen or provided against by the highest practicable care.”
    5. But compare to Hines v. Garrett, 108 S.E. 690 (Va. 1921)
      1. Levmore: Liability occurs when the D’s negligence increased the incremental risk of harm actually suffered by the P. I.e., D’s negligence is a proximate cause of P’s damage iff D’s negligence increased the reasonably foreseeable risk of harm actually suffered by the P
      2. Railroad negligently carried P a mile past her stop. She was raped twice while walking home through an unsettled area.
        
        Note: In the actual case, the P asked to get off the train (in daylight).
      3. Court held that D’s negligence was the proximate cause of P’s injury since that negligence had increased the reasonably foreseeable risk of harm actually suffered by P.
8. Levmore: Foreseeability alone is an inadequate way of affixing liability alone in the Hines and Price series of cases
  1. There are plenty of foreseeable harms to which P could be exposed riding on a train that would not incur liability (e.g., a passenger misses an appointment the next day)
  2. Rather, the actions of the originally negligent party was a substantial factor increasing the incremental risk of harm actually suffered by P in Hines which was the due care actually required by the original tortfeasor which was not the case in Pric
9. Independent and Dependent Causation. When each of two successive acts is sufficient to harm P, but P is exposed to the second cause only because of the prior negligence of the first, the second defendant is normally responsible only for the incremental damages.
  1. Dillon v. Twin State Gas & Electric Co., 163 A. 111 (N.H. 1932). P’s decedent, a 14-year old, lost his balance while trespassing on a bridge, and grabbed D’s high voltage wire. The current killed him and the shock apparently threw his body back onto the girder/safety.
  2. Court held that if a jury reached the factual conclusion that P would have recovered his balance w/out the presence wires, than D could be liable for the full value of P’s life. However, if jury reached the factual conclusion that P would have fallen regardless, than D could only be liable for those seconds of life P would have had remaining.
10. Apparent condition of safety. The cessation of activity in a position of apparent safety severs liability from one actor to the next.
  1. Pittsburgh Reduction Co. v. Horton, 113 S.W. 647 (Ark. 1908). D discarded a dynamite cap on its unenclosed premises near a public school. Cap was picked up by a boy, who traded it to P. The cap eventually exploded, causing P’s hand to be amputated.
    1. Levmore: Liability is appropriate b/c the tort system cares about parental responsibility
    2. Court barred P from recovery against Pittsburgh. The action of the first boy’s parents, who knew or should have known what the cap was and were aware of their son’s possession broke the causal chain b/t company and actual plaintiff.
    3. RPD: Likely that the real action then, would be by P against the first boy’s parents.
    4. Note the important distinction though. The parents of the first boy were wrongdoers by virtue of their negligence
      1. The wrongdoing of the parents was sufficient to sever the causal chain of the first wrongdoer (the company)
      2. RPD: It seems it would be a very different case if you could not find the first child’s parents to have been negligent
11. Deliberate intervention of third parties. Generally speaking, the deliberate intervention of third parties will interrupt the causal chain of liability from the original wrongdoer. However, liability will still remain with the first wrongdoer if such intervention was or ought to have been forseen by the first wrongdoer.
  1. Brower v. New York Central & H.R..R. 103 A. 166 (N.J. 1918). P’s horse and carriage were destroyed by the negligence of D. P’s driver was rendered incapacitated as well. In the ensuing mayhem, P’s cargo was stolen by unidentified third parties. D, which had its own security guards to protect its own cargo, did nothing to protect P’s cargo.
    1. Court held that D could be liable for the loss of P’s cargo stolen by third parties since the negligence which caused the collision also resulted in P’s driver being unable to protect the cargo.
      1. “A railroad company which found it necessary or desirable to have its freight train guarded by two detectives against thieves is surely chargeable with knowledge that portable property left without a guard was likely to be made off with.”
    2. Dissent took a more hard line view of proximate causation, with the notion that a negligent party cannot forsee the criminal acts of third parties
      1. RPD: The Restatement specifically rejects such a categorical denial of the foreseeability of criminal acts.
    3. Brower was endorsed by Watson v. Kentucky & Indiana Bridge & R..R., 126 S.W. 146 (Ky. 1910). D could be liable for its own negligence, but not for the malicious intervention of a third party.
      1. D’s gas car had overturned, but a disgruntled employee allegedly dropped a match on the spilled gas causing a large fire.
      2. Court held that this sort of malicious, wanton act could not have been foreseeable, and hence D could not be liable
      3. However, if the employee dropped the match negligently, D could be liable
12. Last wrongdoer and beyond. The last wrongdoer (as opposed to last actor) assumes causal liability.
  1. “The general principle of the traditional doctrine is that the free, deliberate, and informed act or omission of a human being, intended to exploit the situation created by the defendant, negatives any causal connection” Hart, Causation in the Law 136 (2d ed. 1985) (italics in original)
  2. However, this test is highly restrictive. Subsequent negligence of a third party is insufficient to bar recovery from a prior wrongdoer if the prior wrongdoer’s acts were a substantial factor in causing subsequent harms. RPD: Seems like Levmore would consider “substantial factor” in terms of the negligence increasing the incremental risk of harm suffered by P.
    1. E.g., Hines v. Garrett, Brower
    2. Atherton v. Devine, 602 P.2d 634 (Okla. 1979)
      1. P was injured in a road accident attributable to D. P’s ambulance was struck due to the negligence of a 3^rd party on the way to the hospital
      2. OK law held that a P could recover from a D if P was injured through the malpractice/negligence of the treating physician for the injuries sustained as a result of the physician’s malpractice
      3. Court held that the ambulance accident was analogous and allowed P to recover from the original D, since the D’s action was a “substantial factor” in the 2^nd accident
13. The Restatement.
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    TORTS -> Torts 2- epstein/Miles Outline: C. Proximate cause: Proximate Cause
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